Com. v. Andrejco-Jones, D.

J-S68009-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

DUSTIN RAYMOND ANDREJCO-JONES,

Appellant No. 1491 WDA 2015

Appeal from the Judgment of Sentence August 25, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013855-2010

BEFORE: SHOGAN, SOLANO, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 7, 2016

Appellant, Dustin Raymond Andrejco-Jones, appeals from the

judgment of sentence entered on August 25, 2015, following revocation of

his probation. We affirm.

The trial court summarized the factual and procedural history of this

case as follows:

On March 1, 2011, [Appellant] was convicted of Firearms
Not to be Carried without a License and Possession of a
Controlled Substance. [The trial court] sentenced him to a
mitigated range sentence of six (6) to twelve (12) months
incarceration with two concurrent periods of three (3) years of
probation consecutive to incarceration. On October 13, 2014,
[the trial court] found Appellant to have violated his probation
due to technical violations. [The trial court] took no action
regarding the technical violations at that time. However, on July
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*
Retired Senior Judge assigned to the Superior Court.
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29, 2015, [the trial court] again found Appellant to have violated
probation based on his conviction at CC# 201403120 for three
(3) counts of Robbery, one (1) count of Burglary, and one (1)
count of Aggravated Assault. Appellant’s probation was revoked
and [the trial court] resentenced Appellant to 24 to 48 months
incarceration consecutive to the Robbery, Burglary, and
Aggravated Assault sentence. [The trial court] denied
Appellant’s Motion to Reconsider Sentence on September 1,
2015. Appellant filed a Notice of Appeal on September 24, 2015
and a Statement of Errors Complained of on Appeal on October
15, 2015.

Trial Court Opinion, 1/15/16, at 1-2. The trial court issued an opinion

pursuant to Pa.R.A.P. 1925(a).

Appellant presents the following issue for our review:

I. Whether [Appellant’s] revocation sentence of 24-48
months incarceration was unreasonable and excessive when the
trial court imposed it consecutively to any other sentence he was
serving, coupled with the fact the trial court failed to consider his
rehabilitative needs and other mitigating evidence?

Appellant’s Brief at 4.

Appellant’s issue challenges the discretionary aspects of his sentence.1

We note that “[t]he right to appellate review of the discretionary aspects of

a sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d 127, 132

(Pa. Super. 2014). Rather, where an appellant challenges the discretionary

aspects of a sentence, the appeal should be considered a petition for

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1
In Commonwealth v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013)
(en banc), this Court held that our “scope of review in an appeal from a
revocation sentencing includes discretionary sentencing challenges.” Thus,
there is no impediment to our review.

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allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa.

Super. 2007).

As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:

[W]e conduct a four-part analysis to
determine: (1) whether appellant has filed a timely
notice of appeal, see Pa.R.A.P. 902 and 903; (2)
whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [708]; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P.
2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A.
§ 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.

Super. 2006)). The determination of whether there is a substantial question

is made on a case-by-case basis, and this Court will grant the appeal only

when the appellant advances a colorable argument that the sentencing

judge’s actions were either: (1) inconsistent with a specific provision of the

Sentencing Code; or (2) contrary to the fundamental norms which underlie

the sentencing process. Commonwealth v. Sierra, 752 A.2d 910, 912–

913 (Pa. Super. 2000).

Herein, the first three requirements of the four-part test are met:

Appellant brought a timely appeal, raised the challenges in a post-sentence

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motion, and included in his appellate brief the necessary separate concise

statement of the reasons relied upon for allowance of appeal pursuant to

Pa.R.A.P. 2119(f). Therefore, we next determine whether Appellant raises a

substantial question requiring us to review the discretionary aspects of the

sentence imposed by the trial court.

“We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists.” Commonwealth v. Ahmad, 961

A.2d 884, 886-887 (Pa. Super. 2008). In his Pa.R.A.P. 2119(f) statement,

Appellant argues that the trial court’s imposition of “his revocation sentence

consecutively to all other sentences he was serving, coupled with the fact

that the trial court failed to consider his rehabilitative needs and other

mitigating evidence, was excessive.” Appellant’s Brief at 14. This Court has

held that a challenge to the imposition of consecutive sentences as unduly

excessive, together with a claim that the trial court failed to consider the

defendant’s rehabilitative needs upon fashioning its sentence, presents a

substantial question. Commonwealth v. Bonner, 135 A.3d 592, 604 (Pa.

Super. 2016). Because Appellant has presented a substantial question, we

proceed with our analysis.

Sentencing is a matter vested in the sound discretion of the sentencing

judge, and a sentence will not be disturbed on appeal absent a manifest

abuse of discretion. Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa.

Super. 2006). In this context, an abuse of discretion is not shown merely by

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an error in judgment. Id. Rather, the appellant must establish, by

reference to the record, that the sentencing court ignored or misapplied the

law, exercised its judgment for reasons of partiality, prejudice, bias or ill will,

or arrived at a manifestly unreasonable decision. Id.

Our review is limited to determining the validity of the probation

revocation proceedings and the authority of the sentencing court to consider

the same sentencing alternatives that it had at the time of the initial

sentencing. 42 Pa.C.S. § 9771(b). Additionally, upon sentencing following a

revocation of probation, the trial court is limited only by the maximum

sentence that it could have imposed originally at the time of the

probationary sentence. Commonwealth v. Fish, 752 A.2d 921, 923 (Pa.

Super. 2000); 42 Pa.C.S. § 9771(b). Once probation has been revoked, a

sentence of total confinement may be imposed if any of the following

conditions exist: “(1) the defendant has been convicted of another crime; or

(2) the conduct of the defendant indicates that it is likely that he will commit

another crime if he is not imprisoned; or, (3) such a sentence is essential to

vindicate the authority of the court.” 42 Pa.C.S. § 9771(c)(1-3); Fish, 752

A.2d at 923.

Because sentencing guidelines do not apply to sentences imposed

following a revocation of probation, we are guided by the provisions of 42

Pa.C.S. § 9721, which state the general standards that a court is to apply in

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sentencing a defendant. Commonwealth v. Ferguson, 893 A.2d 735, 739

(Pa. Super. 2006).

When imposing a sentence, the sentencing court must
consider the factors set out in 42 Pa.C.S. § 9721(b), that is, the
protection of the public, gravity of offense in relation to impact
on victim and community, and rehabilitative needs of defendant,
and it must impose an individualized sentence. The sentence
should be based on the minimum confinement consistent with
the gravity of the offense, the need for public protection, and the
defendant’s needs for rehabilitation.

Id. Guided by these standards, we must determine whether the court

abused its discretion by imposing a “manifestly excessive” sentence that

constitutes “too severe a punishment.” Id. Moreover, this Court has

explained that when the “sentencing court had the benefit of a presentence

investigation report (‘PSI’), we can assume the sentencing court ‘was aware

of relevant information regarding defendant’s character and weighed those

considerations along with mitigating statutory factors.’” Moury, 992 A.2d at

171.

It is undisputed that Appellant was convicted of other crimes while

serving his probationary sentence. As a result, the trial court had authority

to resentence him to total confinement pursuant to 42 Pa.C.S. § 9771.

Additionally, the court had authority to impose any sentence that was

available to it at Appellant’s original sentencing.

The trial court carefully and thoroughly considered Appellant’s situation

in resentencing him. The following exchange reflects the court’s reasoning:

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The court: I told you not to come back [when sentenced
on first conviction]. I told you I gave you a free pass
on the first convicted violation, but if you came back,
I also told you I would give you a sentence for state
time. Didn’t I?

[Appellant]: I understand that. But Your Honor, I’m just
asking, if you give me some state time, could you
run it concurrent with the sentence that I already
got, if you can, please?

The court: Well, that wouldn’t be any sort of punishment
at all. That would be another free pass.

***

The court: Well, on the violation case, 201013855, for the
reasons that were already stated – he already had
one free pass, this is a felony 3 gun case, he is on
probation with two other judges, and was convicted
of a second felony case before me. I will revoke his
probation and impose a standard range sentence of
24 to 48 months. That will be consecutive to his
current sentence. Nor further penalty will be
imposed.

***

[Appellant]: There ain’t no way I can get it concurrent to?

***

The court: I would like to point out to you that I have
already given you a significant break on this case
with your original sentence and with taking no action
on your first convicted violation. So your sentence
here represents your second violation, convicted
violations of a felony 3 gun case.

This is a standard range sentence. Even
though the guidelines do not apply in the sentencing,
it’s a fair sentence, it’s in the standard range of the
guidelines, and I think it’s appropriate under these
facts. So I am running it consecutive.

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And these are your decisions that continue to
put you in this situation away from your family, not
mine.

N.T., 8/25/15, at 6-10.

As is clear from the transcript, the trial court had acted previously with

considerable leniency in sentencing Appellant originally and in taking no

action on Appellant’s first probation violation. After Appellant’s second

probation violation, Appellant was given a sentence of only twenty-four to

forty-eight months of incarceration. This sentence was below statutory

limits and was a sentence the trial court could have imposed when Appellant

was originally sentenced. See 18 Pa.C.S. § 1103(3) (a person who has been

convicted of a felony of the third degree may be sentenced to imprisonment

“for a term which shall be fixed by the court at not more than seven

years.”).2 Moreover, we cannot agree with Appellant’s contention that

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2
As noted, Appellant’s original sentence was a split sentence that included
six to twelve months of incarceration. The probation-revocation court
awarded Appellant credit for the seven months of time served, crediting it to
the sentence imposed on Appellant’s recent convictions. N.T., 8/25/15, at
7-8.

[W]here probation is revoked on a split sentence, as in the case
sub judice, a defendant is not entitled to credit for time spent on
probation. Nor is a defendant automatically granted credit for
time served while incarcerated on the original sentence unless
the court imposes a new sentence that would result in the
defendant serving time in prison in excess of the statutory
maximum.

(Footnote Continued Next Page)

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imposition of this sentence consecutively to his sentence for the subsequent

convictions resulted in a manifestly excessive sentence. As the trial court

noted, to impose the sentence concurrently would have had no punitive

effect.

Moreover, the trial court had the benefit of a PSI. Thus, we can

assume the sentencing court was aware of relevant information regarding

Appellant’s character and weighed those considerations along with mitigating

statutory factors. Moury, 992 A.2d at 171; see also Commonwealth v.

Fowler, 893 A.2d 758, 766 (Pa. Super. 2005) (“Since the sentencing court

had and considered a [PSI], this fact alone was adequate to support the

sentence, and due to the court’s explicit reliance on that report, we are

required to presume that the court properly weighed the mitigating factors

present in the case.”). Accordingly, Appellant’s argument that the trial court

failed to consider mitigating evidence, specifically his need for rehabilitation,

fails. See Moury, 992 A.2d at 171; Fowler, 893 A.2d at 766.

Judgment of sentence affirmed.

_______________________
(Footnote Continued)

Commonwealth v. Crump, 995 A.2d 1280, 1284 (Pa. Super. 2010)
(internal citations omitted). Thus, the sentence imposed following
revocation of Appellant’s probation did not exceed the statutory maximum.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/7/2016

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